The millennium ushered in a new theory of equal protection liability in civil rights cases in the land use field. Since 2000, real estate developers and municipalities alike have become familiar with a new species of equal protection charge, known to §1983 practitioners as the “class of one” claim. (42 U.S.C. §1983 provides a civil action for deprivation of any rights, privileges or immunities secured by the Constitution and laws.) On Oct. 6, 2009, in Casciani v. Nesbitt, District Judge David Larimer of the U.S. District Court for the Western District of New York issued the most recent decision in the field, in a case involving a homeowner’s private helipad constructed in his backyard.1
The U.S. Supreme Court first acknowledged, albeit indirectly, that a single member of an otherwise unprotected class of persons might assert a viable claim under the Equal Protection Clause in 1923 in Sioux City Bridge Co. v. Dakota County.2 It took another 77 years for the Court to acknowledge, directly, that viable “class of one” claims may be asserted under the Equal Protection Clause. That was in 2000, in Village of Willowbrook v. Olech,3 where the Court expressly held that the number of individuals in a class is immaterial for equal protection analysis, and that a so-called “class of one” may have valid constitutional claims.
